The Respondent committed an unfair labour practice against the applicant

CASE NO PSSS605 – 06/07 AND LABOUR COURT CASE NO JR 2364/08

Facts

This matter dates back to 2008 and began with an Arbitration that was heard by the SSSBC and was finalised on 31 October 2012.

The Applicant was employed by the South African Police Services in the rank of Lieutenant Colonel (previously superintendent) at the time. The Applicant applied for a promotion to the position of full Colonel. The Applicant was not promoted due to irregularities in the process.

The issue to be decided was whether that there was a material irregularity in the appointment process leading to appointment of the second respondent, prejudicing the Applicant and leading to an Unfair Labour Practice.

The SSSBC made the following award:

‘If not for the said unfair conduct, the applicant would have been appointed in the post and promoted to the level of Senior Superintendent. The first Respondent is directed to pay the Applicant an amount equal to the difference between his annual remuneration he would have received if he was promoted to the promotional post until 1 August 2008, alternatively an amount equal to 6 month’s remuneration at the rate earned by him as at 1 August 2006, whichever is the greater amount.’

DATE: 28 August 2008

The above said award was reviewed and the Labour Court made the following order:

A. ‘The arbitrator’s finding in her award dated 28th August 2008 on the appropriate relief due to the Applicant flowing from her finding that there was a material irregularity in the appointment process leading to appointment of the Second Respondent is set aside.

B. The Third Respondent is directed to set the matter down before another arbitrator to determine the appropriate relief including any substantive relief which ought to be granted to the applicant flowing from the arbitrator’s finding of a material irregularity in the appointment procedure.

C. The arbitrator appointed by the second respondent shall determine the appropriate relief based on a reconstructed record of the arbitration proceedings under review in this matter.

D. Each party to pay its own costs.’
In view of the order, the parties and the arbitrator agreed that written arguments would be submitted and the matter would be decided based on the arguments and the evidence on record.

Our Involvement

The written arguments were submitted by Du Toit Attorneys and the last document submitted on the 27th September 2012. The Arbitration award was issued on 31 October 2012 in favour of the Applicant.

Success

Extract from SSSBC Pretoria Arbitration Award issued under Case No PSSS605- 06/07

On the totality of the evidence and the authority before me I find that but for the material irregularity that happened in the short listing process, the applicant would have been appointed in the post and promoted to the level of Senior Superintendent…

‘In the premise I make the following finding

A. The Respondent committed an unfair labour practice against the applicant. The Applicant is entitled to substantive relief.

B. The Respondent is ordered to promote the Applicant to rank of Senior Superintendent (currently Colonel) retrospectively from 1 August 2006 without any loss of benefits.

C. There is no order as to costs.’

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